Selected quad for the lemma: cause_n
Text snippets containing the quad
|
ID |
Title |
Author |
Corrected Date of Publication (TCP Date of Publication) |
STC |
Words |
Pages |
|
A39583
|
A Reply to a paper intituled A true account of the unreasonableness of Mr. Fittons pretences against the Earl of Macclesfield
|
|
1685
(1685)
|
Wing F1067; ESTC R37818
|
5,214
|
5
|
A REPLY TO A PAPER INTITULED A True Account of the Vnreasonableness of Mr. Fitton ' s Pretences against the Earl of Macclesfield Whereas that Paper calls Mr. Fitton a remote Kinsman Observe the Relation stands thus Sir Edw. Fitton Treasurer of Ireland had Issue Sir Edw. Fitton and Alexander Sir Edward was Grand-father to the last Sir Edward and Alexander was Grand-father to the Petitioner IT is alledged in the Paper That Mr. Fitton had been but Four Years in Possession and that before that time the Earl of Macclesfield was in possession by vertue of the Will As to the Fitton 's Possession the Case stands thus Sir Edward Fitton died in 1643. In 1647. William Fitton recovered the Possession of the Mannor of Alford and Gawsworth-Park which was all the Estate that was not in Mortgage or Jointure In 1652. the Mortgage was redeemed by Mr. Fitton and about 1655. the Jointress died and from that time he had possession of that part of the Estate also As to the Earl's prior Possession the Fact is thus He together with the other Co-heirs upon the death of Sir Edward Fitton 's Mother did enter upon Alford and receiv'd his seventh part of the Profits as one of the Co-heirs till the Fittons recovered the Estate from them which is so far from being a Possession under the Will that it is a demonstration he did not then believe there was any such And for many years in many Suits between the Co-heirs and the Fittons as well when they were Plaintiffs as Defendants the Earl was joined with them The 2d Matter alledged is That the Chancery did no wrong to Fitton by not suffering him to try the Title to the Will because upon his Answer he never contested it The falsity of this Allegation appears by the Words of the Answer And these Defendant say That they nor either of them Know or Believe that Sir Edw. Fitton did make his Will in Writing in the Bill mentioned pretended to bear date c. Which is a plain denial of it and that the Earl took it to be so is as plain by his endeavouring to prove the Will in the Cause The 3d Allegation in the Paper is A pretended Answer to that which ever was and ever will be required in all Courts of Law and Equity That the Plaintiff must make out his own Title before he be admitted to controvert the Title of the Defendant who is in possession And therefore the Earl's Title being a Title at Law under the Will which was devised he ought to have made out that Title at Law before he should have been admitted to controvert the Deed-Poll which was part of the Defendant's Title The next thing is A cunning Insinuation as if to assert the Deed-Poll were a Reflection on the Judgments of the House of Lords given upon the Earl's complaint against Fitton and Granger about the Libel which is a meer Fallacy for that Paper might be justly censur'd as a Libel and the publishing of it as a Crime tho' every word of it was true because it was not asserted in a legal Course And it is most true that the Verdict was given upon Granger's Evidence and upon that of his Servants or Companions who swore what Granger told them In Answer to the pretended Circumstances to prove the FORGERY 1. There was no occasion to produce the Deed-Poll at any of the Tryals with the Co-heirs because Fitton 's Title was under the Settlement which they never pretended to be revoked 2. There was no cause to produce it upon the Marriage-Treaty for Mr. Fitton 's Wife 's Relations looked on his Title as undoubted he being in possession upon three Judgments at Law so that no Deeds at all were produced but the Marriage took effect upon Articles 3. William Jolliffe Esq a Gentleman of Quality and undoubted Reputation and divers others proved That they saw the Deed-Poll some years before the time that Granger swore he forged it 4. As to the pretence That Fitton 's Father knew nothing of the time 't is false and affirm'd without proof 5. The Witnesses to the Deed-Poll Rich. Davenport Esq Tho. Smalwood and Edw. Barwick Gent. were persons of such Credit that the Earl never went about to impeach it They upon their Examination in the Cause in Chancery swore That they were present and saw Sir Edw. Fitton Seal and Deliver as his Act and Deed the said Deed then shewn to them and that their Names endorsed on the Deed was their proper Hand-writing Now 't is not probable that Witnesses Names who were all living and strangers to Fitton should be put to a Deed supposed to be forged twenty years after the pretended Date 6. 'T is not at all strange that they should not on the sudden recollect the time and place of executing the Deed it being after 20 Years and they having been Witnesses to divers Deeds seal'd by Sir Edw. Fitton 8. All the three Witnesses did afterwards recollect themselves and frequently in their Life-time and severally on their Death-beds declared they perfectly remembred the Time and the precise Place where the Deed was seal'd viz. In the Compass-Window in the Hall in Gawsworth house Therefore let any Man that can believe that Mr. Davenport asked Pardon for swearing that he was a Witness to the Executing the Deed when he died affirming it 9. As to the nature of Granger's Evidence If it were true he must be a great Villain and guilty of Forgery and 't is considerable what Credit he ought to have who swears himself at that instant to deserve none And Granger himself from the time of that Tryal till his Death which was very lately own'd That he never saw Fitton till the Morning when the Tryal was had and that one was then employ'd to shew him Fitton as he came into Westminster-hall And at his Death confess'd That of all the Villanies of his Life that which troubled him most was the wrong he had done Fitton in swearing he forged the Deed-Poll of which there are many Witnesses beyond all exception And if Granger could deserve Credit in behalf of the Earl after he had own'd himself guilty of Forgery he may be allow'd to Deserve as much Credit in behalf of Fitton after he had been guilty of Perjury Especially when the very persons concerned in suborning Granger and who paid him for it confess their knowledge of the Fact 10. As to what the Answer call an Evidence from the nature of the thing that it was improbable Sir Edw. Fitton who was married and in a possibility of having Children should release his Power of Revocation It is to be observed That Sir Edward continued Tenant in Tail after the Release and so might cut off the Remainders by a Recovery if he had Issue but 't is probable it was done to prevent any sudden act he might be prevail'd upon to do to the prejudice of his Heir-Male by the Importunity of his Sisters who were his Heirs and also to
establish and strengthen his Settlement the Times growing ill and he being about to enter into the War which would have signified nothing as to the saving his Estate in his Family if he had had a power to revoke it In Answer to the fifth Objection 't is plain the Possession and Deeds and Account of the Profits were Decreed before any Tryal was had upon the Will and before the Tryal which the Chancery it self thought fit to allow which was plainly before the Cause was Determined 'T is also evident that the Deed was at first sent with prejudice to be Tryed for it was called a pretended Deed. Nothing can be more frivolous than the sixth Allegation that the Right of Inheritance was not touch'd but only the Person bound by the Decree For all Deeds were taken from Mr. Fitton together with the Possession and the Deed-Poll Cancelled and he Decreed to have no farther Tryal and he that has no Remedy has no Right or at least his Right can do him no good Whether the Court of Chancery has exceeded their Power is now the Question before the Lords and therefore to draw Arguments from the Judgment of the Lord Chancellor or Lord Keeper is begging the Question and is indeed to make an Argument Which if it have any force at all will indifferently serve against all Appeals to the Lords the Jurisdiction of this Great Court being founded upon a supposition that Chancellors and Keepers may mistake Besides the now Lord Keeper being prevented by a Plea and Demurrer could never look into the Proofs in the Cause That the Decree is larger than the Plaintiffs Petition will be obvious to any Person who looks on both nothing is pray'd but to set aside the Lease and to be at Liberty to examine Witnesses to the Will But the Decree is for the Possession for an Account of Profits for Delivering up and Vacating Deeds and does exclude the Defendant from Trying his Right at Law for the future The pretended Answer divides the Proofs of the Will into three Heads As to the first which mentions Sir Edward's Intention to settle his Estate on the Earl of Macclesfield Mr. Manwairing the first Person named had for many Years together been in Suit which Mr. Fitton as one of the Co-heirs of Sir Edward and therefore could not believe there was a Will And Sir John Trevor Mr. Davenport and other Persons of undoubted Credit did fully prove in the Cause that Sir Edward did ever intend to keep the Estate in the Name and to settle it on William Fitton and sent for him out of Ireland for that purpose and declared that rather than a Fitton should not have it he would leave it to Ned Fitton the Bang-beggar Nor could Sir Edward Fitton conceive any prejudice against William Fitton because he was engaged in the Irish or English Rebellion since'tis utterly false that he was engaged in either being well known to be a Gentleman of very Loyal Principles And Philip Pritchard Esq Ralph Jamon and Thomas Cowley William Sweetenham Edmund Barwick Edward Gardiner and John Snelson prove that when Sir Edward Fitton upon his Death-bed was sollicited by Earl Rivers and Mr. Davenport to settle his Estate upon the Lord Gerrard he absolutely refused it And John Cowley and another proves that when the Earl of Dorset and Earl Rivers at Oxford at several times about three Months before his Death importun'd Sir Edward Fitton to settle his Estate on the Lord Gerrard he made answer he could not do it having settled it before on the Fittons Which is in effect a proof that Sir Edward Fitton own'd he had Releas'd his Power of Revocation As to the second Head the Witnesses who spoke positively to the Will were two Dr. Smallwood and Hollingshead Smallwood being Examined as a Witness in a Cause in Chancery between the Co-heirs and Mr. Fitton did Depose that he knew not of any Settlement made by Sir Edward Fitton by Deed Will or otherwise which Oath of his must be false if he had at that time the Will in his Doublet where he pretended to have carried it seventeen Years 2. Whereas according to the Settlement Edward the Eldest Son of William Fitton at his Age of fourteen Years tendred himself to marry the Lord Brereton's Daughter Smallwood being then his Domestick Chaplain persuaded the Lord Brereton to marry his Daughter to him which he could not do without the basest Infidelity if he knew the Estate was given away from the Fittons As to Hollingshead he was the Person who treated a Marriage between Edward the Eldest Son of William Fitton and the Daughter of William Jolliff Esq which was prevented by Edwards Death and who after treated a Marriage between the Petitioner and the Daughter of Thomas Jolliff Esq and upon both those Treaties he constantly affirmed the Title of the Fittons under the Settlement 2. After the Marritge had taken effect he pressed the Petitioner for a Lease of a Farm part of the Lands in question and offered a considerable Fine for such Lease which he would not have done if he knew the Petitioner had no Title and he often affirmed that he was present when Earl Rivers press'd Sir Edward Fitton to settle his Estate on the Plaintiff which he refused He also advised others to renew their Leases from Mr. Fitton which they did thereupon And notwithstanding it is alledged with so much assurance that the Will was clearly Proved at the Tryal at Chester Sir Job Charlton before whom the Cause was Tryed directed the Jury that they ought to have no regard to Hollinshead's Testimony as a Person not credible and that the only Evidence for the Will was Dr. Smallwood if they did believe him As to the rest of the Witnesses who speak to Hollingshead's Report their Testimony falls together with Hollingsheads 'T is true there was an Information of Perjury Exhibited against Smallwood and Hollingshead but Mr. Fittons most material Witnesses being then beyond Sea when the Cause was to be Tryed and the Court refusing to put off the Tryal no Evidence at all was given and the Defendants acquitted of course As to that Objection which may at first seem plausible that it will be a hardship upon the Earl to come to a Tryal after so long a time if it be examined it will appear to have to weight in it For the Question being upon the reality of the Will and the Earl's Witnesses having been all Examined their Depositions remain for his advantage and they cannot be cross-examined by the Court which they might have been if they were yet alive and that is only to the disadvantage of Mr. Fitton There is no time of limitation fixed in case of an Appeal from an Erroneous Decree In this Case the Plaintiff and Defendant are still living Mr. Fitton has been Prisoner almost ever since the Decree but has made Entries and Claims on Record from time to time though under a disability not only to Prosecute this Suit but another Suit upon a Mortgage of part of the Lands in question which he might have done if able at a much less charge than bring on this Cause The Tryal had at Chester is much insisted on but if the Fact were stated would have little weight with it Mr. Fitton was then a Prisoner the Sessions appointed in Term-time all the Principal Council below retain'd by the Earl and Mr. Fitton could get no Council in London to leave the Term to go to that Tryal nor could he prevail with divers of his material Witnesses to go down All which appears by several Affidavits made in Chancery before the Tryal and in order to put if off And at the Tryal he lost the use of several Witnesses who were dead being not suffered to read their Depositions because the Bill and Answer in the Cause were forgotten to be brought down as appears by another Affidavit made in the same Court for a new Tryal